Legal grey area hinders Aboriginal repatriation

Last week the bodies of 33 Australians were repatriated from overseas burial. The remains included service personnel interred in Malaysia, and an Australian who died during the Vietnam War who had been interred in Singapore.

Reactions to the solemn ceremony of repatriation make it obvious that many are deeply affected by the death of soldiers — military personnel, politicians, family, and the general public.

As a society, we continue to feel a deep and solemn connection to those who have died on foreign soil, and a strong desire to bring them home.

But it is not only the bodies of deceased Australian military personnel that remain overseas. Last month, remains of Aboriginal people, centuries old, were returned to their home in the Western Goldfields of WA from various overseas institutions. The repatriation of six sets of remains is part of a project organised by the WA Museum.

Until the 1940s, bodies of deceased Aboriginal and Torres Strait Islander people were sent to museum, scientific, and private collections around the world. Collectors were not satisfied with grave robbing and there are also terrible stories of humans being killed for the purposes of adding to collections.

Many such remains still form part of overseas exhibits, some of which are mislabelled as animal bones. Indeed the remains of more than 1000 Aboriginal and Torres Strait Islander Australians continue to be held overseas in collections.

Holding human remains of colonised peoples, and their cultural belongings, as exhibits, whether scientific or cultural, is deeply offensive to the descendants of those taken, and to Indigenous Australians more widely. It should be offensive to all Australians.

The practice is a remnant of colonial attitudes that treated indigenous peoples worldwide as curiosities. That human remains and cultural belongings continue to be held overseas represents the ongoing effects of global colonialism.

"Traditional beliefs hold that for the spirit to be at peace, the remains must return to their country. This is not very different from the beliefs that cause us to expend so much effort to repatriate military personnel."

In addition, failing to repatriate the remains is hurtful to the spiritual beliefs of the descendants of those taken. Traditional beliefs hold that for the spirit of a deceased person to be at peace, the remains must return to their country. This is not very different from the beliefs that cause us to expend so much effort to repatriate Australian military personnel, or to compensate for non-repatriation through the solemn rituals espoused by the ADF including ANZAC Day commemorations.

Indigenous Australians have worked tirelessly towards repatriation of human remains and cultural belongings, and there has been some success in recent decades. Unfortunately, the remains have tended to fall into a grey area of Australian law. There are myriad state and Commonwealth heritage laws that provide, in broad terms, for the ownership of such remains and cultural artefacts by descendants of the relevant people. There are however difficulties with the existing legislative regime.

First, these laws do not afford protection for remains or artefacts taken before the items were protected. Further, Australian law does not apply in other jurisdictions. For remains already overseas, the legislation provides no assistance. Indigenous Australians who have been working for repatriation for many years are reliant on the policies of overseas institutions or other national laws, to negotiate release of remains and artefacts.

A further widely recognised problem with cultural heritage protection more broadly is that it takes a Western perspective to artefacts — a 'museum' approach that preserves items whose use and purpose has passed. Instead, these items are part of an ongoing continuous culture. As Indigenous lawyer Terri Janke pointed out in her 2011 Mabo Oration:

'Too ancient for copyright, or where the author is unknown, [cultural artefacts] too are at risk of being treated as terra nullius. But just like land, these things are connected to a living people. These institutions are realising that they must consult with Indigenous people concerning the display, exhibition, repatriation and interpretation of their traditional intellectual property.'

Importantly, with Australia's signing of the United Nations Declaration on the Rights of Indigenous Peoples and a greater commitment to observe its obligations under the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, the Australian government has in recent years developed policy to assist Indigenous Australians with the return of their ancestors' remains and other cultural artefacts.

Since 2012 for example, there has been Australian government support for repatriation, including for remains from overseas. Many Australian institutions have likewise sought to engage in a respectful and consultative process for returning human remains and sacred objects to their rightful place. Janke points out that museums have ongoing obligations to consult with traditional owners as to ongoing use, to respect the cultural rights of Indigenous peoples.

Each time I see the sad and solemn return of the remains of Australian military personnel or their commemoration overseas, including in respect of those who died many years ago, I am reminded of the ongoing pain of Indigenous Australians who seek the return of their ancestors' remains. I can only hope that we will see the expedited return of remains and cultural belongings, to right this ongoing wrong.

Kate Galloway is a legal academic with an interest in social justice.

Pictured: Elders and school children gather at Mount Margaret Mission in the WA's northern Goldfields for the repatriation of Aboriginal remains.

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Thank you Kate for this eloquent and passionate analysis. Your sentiments resonate with another repatriation of particular importance, the Lake Mungo remains. Recent public statements by John Mulvaney, Tom Keneally and myself have drawn the nation's attention to the total failure of both governments, NSW and the Commonwealth to ensure funding support for repatriation and appropriate resting place for this nation’s iconic symbols, the remains of Mungo Man and Mungo Lady. These virtual foundation figures of the Willandra Lakes World Heritage status await an appropriate home-coming. Despite John Mulvaney’s constant pleas over 30 years for an appropriate Keeping Place consistent with Traditional Owners’ wishes, no such facility is even on the horizon. Meanwhile Traditional Owners, far from the powerhouses of Sydney and Canberra, struggle with the bureaucratic minefield such issues inevitably generate. In late 2013, without explanation, the NSW government trashed the Management Committee and Elders Council. For 3 years this World Heritage area and the sacred remains it preserves has remained leaderless. A special letter from the former Chair of the World Heritage Management Committee, Mr Mike Ockwell, to the NSW Minister for Environment and Heritage defining the urgency of these issues remains unanswered after three months. Such is the attention the New South Wales government has offered these items, sacred not only to Traditional Owners but shared in that broader context by the wider human family. Totally ignored in current electioneering generosity, the gap between Lake Mungo people and the east coast bureaucracy remains another shameful chapter in Australia’s indigenous agenda.Jim Bowler | 17 June 2016

SO MUCH FOR DIGNITY. I live in Ipswich Qd where the Council are backing a Japanese funded Real Estate company to BUILD HOUSING OVER THE LOCAL ABORIGINAL CEMETERY. It is disgusting and THE CATHOLIC COMMUNITY ARE SITTING SILENT AS USUAL. It's sad but true. Why not build a Supermarket over the local Cemetery?Dr Francis Douglas | 17 June 2016

Thank you Kate.This is, obviously,another form of colonisation.It seems the richness and value of indigenous culture is prized and caught in ignorant western old legal jurisdictions, supported and kept by governments or wealthy patrons.How much more do we pillage?Industrialisation,capitalism, economic wealth must be seen and held for what it has procured. We must recognise the land and people as an entity.We have only begun to learn, understand.Then, only then,we have a possibility to benefit. Catherine | 17 June 2016

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